Opinion
3:24-cv-01590-YY
11-12-2024
JAMES E. JACOBSON, JR., Plaintiff, v. JEFFREY MEYERS, Esq, and ATTORNEYS AZ, as individuals and as members, partners and/or principals of the firm of Law, Lyman, Daniel & Bogdanovich, P.S, who appeared in this or any related matter on behalf of the City of Olympia; and MR. BEN BARNES, as an individual and as the Probation Services Department of the Olympia Municipal Court, jointly and severally, Defendants.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You, United States Magistrate Judge
FINDINGS
In his Second Amended Complaint, pro se plaintiff James E. Jacobson, Jr., alleges 42 U.S.C. § 1983 claims for violations of the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments, a claim under the Americans with Disabilities Act (ADA), and state law claims for defamation, fraud, and intentional infliction of emotional distress. ECF 22. Although plaintiff has been afforded the opportunity amend his complaint, his claims still suffer from a myriad of defects, including that this court lacks personal jurisdiction over defendants. Because it is not in the interest of justice to transfer this case to another district where it could have been brought, it should be dismissed. See 28 U.S.C. § 1631.
I. Background and Plaintiff's Factual Allegations
Plaintiff alleges that the Olympia Police Department arrested him for driving under the influence of intoxicants (DUI) without probable cause on September 15, 2010, and then illegally arrested him again on September 16, 2010, at 12:01 a.m., within 20 minutes of his release from custody on the first DUI. Second Am. Compl. 8, ECF 22. Plaintiff contends that he was later coerced into signing a petition for deferred prosecution, “despite the charges being based on false evidence.” Id. at 9. Plaintiff claims that he completed the requirements of the deferred prosecution in 2013, but defendant Ben Barnes, a probation officer in Olympia, Washington, “authored several objectively false reports alleging multiple DUI convictions that do not exist.” Id. He claims that “[t]hese false reports have been republished by Defendants through the National Driver Register (NDR), leading to Plaintiff's Oregon driver's license being blocked from renewal FOR LIFE by Washington State's Department of Licensing, based on the false reports produced by Mr. Barnes.” Id. at 10 (emphasis in original).
The other defendants in this case include Jeffrey Meyers, an attorney representing the City of Olympia, other members of Meyer's law firm, Law, Lyman, Daniel & Bogdonavich, and unnamed prosecuting attorneys for the City of Olympia who “have likewise adopted and promoted the false and defamatory reports generated by Mr. Barnes for the purpose of defaming Plaintiff and continuing to deny Plaintiff's Constitutional and Civil Rights.” Id. at 7. Plaintiff also claims that “John Doe defendants,” who are unidentified “attorneys, probation officers, and municipal employees,” “knowingly submitted, filed, or perpetuated these false reports between September 2010 and February 2022, and acted in concert with named Defendants to deprive Plaintiff of his constitutional rights, including the right to a fair hearing and freedom from unlawful seizure.” Id. Plaintiff refers to these “John Doe defendants” in the body of the complaint; however, the caption of plaintiff's complaint contains no reference to John Doe defendants.
From other documents in the record, it appears that the correct spelling is Myers.
II. Personal Jurisdiction
On October 9, 2024, this court held a telephonic conference for the purpose of explaining to plaintiff some of the deficiencies in his previously-filed Revised Complaint (ECF 18), including that his claims appeared to fall outside the statute of limitations and are barred by Heckv. Humphrey, 512 U.S. 477 (1994). Although none of the defendants have yet been served, attorneys representing defendant Barnes have filed a Special Notice of Appearance (“without waiving objections to sufficiency of service of process”), ECF 12, and a Notice of Association (“request[ing] that any and all further pleadings” be served on them). ECF 17. At the court's invitation, Barnes's counsel appeared at the telephonic conference and voiced concern that there is also a jurisdictional problem with plaintiff's case. Indeed, this court lacks personal jurisdiction over defendants.
While personal jurisdiction can be waived, “a defendant's notice of appearance prior to filing a motion to dismiss does not constitute a waiver of personal jurisdiction, as long as the defense is raised in an instant motion to dismiss or the first responsive pleading.” W. Institutional Rev. Bd.,Inc. v. Jenkins, No. 3:17-CV-05523-BHS, 2018 WL 1811364, at *3 (W.D. Wash. Apr. 17, 2018). Here, it is clear that Barnes is not waiving personal jurisdiction, given his attorney brought the jurisdictional defect to the court's attention.
A. Relevant Law
Plaintiff has been granted leave to proceed in forma pauperis (“IFP”). See Order, ECF 23. The IFP statute provides that “[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted, or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).
Where an “in forma pauperis Complaint lacks an arguable basis in either law or fact pertaining to personal jurisdiction, it must be dismissed sua sponte as frivolous.” Brimm v.Genao-Gomez, No. CV 14-197-M-DLC, 2014 WL 5471969, at *4 (D. Mont. Oct. 28, 2014); see also In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999) (“A judgment entered without personal jurisdiction over the parties is void.”); Clancy v. Allstate Ins., No. 19-CV-04257-BLF, 2020 WL 7872196, at *1 (N.D. Cal. Oct. 21, 2020) (dismissing a case after “a sua sponte screening pursuant to 28 U.S.C. § 1915 establishes that [the plaintiff] has failed to allege facts showing personal jurisdiction over Defendant in this Court”).
“Federal courts ordinarily follow state law in determining the bounds of their jurisdiction over persons.” Picot v. Weston, 780 F.3d 1206, 1211 (9th Cir. 2015) (quoting Daimler AG v.Bauman, 571 U.S. 117, 125 (2014)). Oregon's long-arm statute is co-extensive with constitutional standards, and thus this court need only determine whether its exercise of personal jurisdiction is consistent with constitutional due process standards. Gray & Co. v. Firstenberg Mach. Co., 913 F.2d 758, 760 (9th Cir. 1990) (citing Or. R. Civ. P. 4L); Swank v. Terex Utilities,Inc., 274 Or.App. 47, 57 (2015).
Constitutional due process requires that a defendant “have certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int'l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945) (citations omitted). “In giving content to that formulation, the Court has long focused on the nature and extent of ‘the defendant's relationship to the forum State.'” Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 592 U.S. 351, 358 (2021) (quoting Bristol-Myers Squibb Co. v. Superior Ct. of California, San Francisco Cty., 582 U.S. 255, 262 (2017)). That focus led to the recognition of two kinds of personal jurisdiction: general jurisdiction and specific jurisdiction. Id. (citing Goodyear DunlopTires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)).
The plaintiff bears the burden of establishing that personal jurisdiction exists. RioProperties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002). To make a prima facie showing, a plaintiff must produce “facts that if true would support jurisdiction over the defendant.” Harris Rutsky & Co. Ins. Services, Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003) (citation omitted). “[A]lthough well-pleaded allegations are taken as true, . . . ‘bare bones assertions of minimum contacts with the forum or legal conclusions unsupported by specific factual allegations will not satisfy a plaintiff's pleading burden.'” MaverickBankcard, Inc. v. Nurture Sols., LLC, No. 222CV02875ODWJPRX, 2023 WL 8543508, at *3 (C.D. Cal. Dec. 11, 2023) (quoting Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004), and Swartz v. KPMG LLP, 476 F.3d 756, 766 (9th Cir. 2007) (internal quotation marks omitted)).
B. General Jurisdiction
General jurisdiction extends to “any and all claims” brought against a defendant, but a court may exercise general jurisdiction only “when [the defendant's] affiliations with the State are so ‘continuous and systematic' as to render [it] essentially at home in the forum State.” Daimler AG, 571 U.S. at 127. The standard for establishing general jurisdiction is “fairly high,” Brand v. Menlove Dodge, 796 F.2d 1070, 1073 (9th Cir. 1986), and “requires that the defendant's contacts be of the sort that approximate physical presence.” Bancroft & Masters,Inc. v. Augusta Nat. Inc., 223 F.3d 1082, 1086 (9th Cir. 2000), holding modified by Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199 (9th Cir. 2006) (citing GatesLearjet Corp. v. Jensen, 743 F.2d 1325, 1331 (9th Cir. 1984)).
For individuals, the “paradigm forum for the exercise of general jurisdiction is the individual's domicile.” Daimler AG, 571 U.S. at 137. Here, plaintiff has offered nothing to show that defendants are domiciled in Oregon. Rather, plaintiff's allegations suggest that defendants are domiciled in Washington. Plaintiff alleges that defendant Barnes is a probation officer in Olympia, Washington, and that the prosecuting attorneys are employees of the City of Olympia. Second Am. Compl. 6, ECF 22. Plaintiff also alleges that defendant Meyers and his firm represent the City of Olympia. Id. at 8. Similarly, the Doe defendants are alleged to be employed by the City of Olympia. Id. Therefore, plaintiff has failed to meet his burden of establishing that there is general jurisdiction over defendants.
C. Specific Jurisdiction
Specific jurisdiction applies to a broader class of defendants than general jurisdiction, but for a “narrower class of claims.” Ford Motor, 592 U.S. at 359. Specific jurisdiction over a nonresident defendant depends on the relationship between “the defendant, the forum, and the litigation.” Walden v. Fiore, 571 U.S. 277, 283 (2014). The Ninth Circuit employs a three-prong test for analyzing specific jurisdiction. First, the defendant “must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws.” Glob. Commodities Trading Grp.,Inc. v. Beneficio de Arroz Choloma, S.A., 972 F.3d 1101, 1107 (9th Cir. 2020) (quoting Schwarzenegger, 374 F.3d at 802). Second, the claim must arise out of or relate to the defendant's forum-related activities, though a strict causal relationship is not required. Id.; Ford Motor, 592 U.S. at 359. Third, the exercise of jurisdiction must comport with fair play and substantial justice, i.e., it must be reasonable. Glob. Commodities, 972 F.3d at 1107.
Plaintiff claims that Barnes “authored” false reports “alleging multiple DUI convictions that do not exist” and that defendants “republished” the false reports through the National Driver Register. Second Am. Compl. 9-10, ECF 22. Plaintiff also makes various claims stemming from his arrests and incarceration in Olympia, Washington. Id. at 12-14. None of these actions satisfy the three-prong test for specific jurisdiction. See Clemens v. McNamee, 615 F.3d 374, 377, 380 (5th Cir. 2010) (finding no specific personal jurisdiction where the defendant allegedly published defamatory statements through a national website because the statements did not concern forum state activity, were not made in the forum state, and were not directed at residents of the forum state more than any other state). Therefore, this court lacks specific jurisdiction over defendants as well.
III. Whether to Transfer or Dismiss
Under 28 U.S.C. § 1631, where the “court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action . . . to any other court . . . in which the action or appeal could have been brought at the time it was filed or noticed ....” “To determine whether transfer is ‘in the interest of justice,' courts will generally consider judicial economy, the relative injustice imposed on plaintiff and defendant, whether the statute of limitations has expired, and whether the action would be re-filed if the case were dismissed.” Aliv. Carnegie Inst. of Washington, 967 F.Supp.2d 1367, 1391 (D. Or. 2013) (citing Grain Millers,Inc. v. Pacific Flexpak, Co., No. 07-cv-1065-AS, 2008 WL 550124, at *2 (D. Or. Feb. 26, 2008)). Courts have also considered whether the complaint is frivolous or fails to state a claim for relief. See Amity Rubberized Pen Co. v. Mkt. Quest Grp. Inc., 793 F.3d 991, 996 (9th Cir. 2015) (observing that transfer is not required where “it is apparent that the matter to be transferred is frivolous or was filed in bad faith”); Jones v. Seetoo, No. 2:23-CV-01285-RSM, 2023 WL 5578741, at *1 (W.D. Wash. Aug. 29, 2023) (“Justice does not require a transfer of this case to California because the Complaint fails to state a claim upon which relief may be granted.”).
Because plaintiff's claims suffer from a multitude of defects, it is in the interest of justice to dismiss the case rather than transfer it to the Western District of Washington where it could have been filed.
A. Count 1: Fourth, Fifth, Eighth, and Fourteenth Amendment Claims
Plaintiff asserts a 42 U.S.C. § 1983 claim based on various constitutional violations, which are discussed in turn below.
1. Fourth Amendment
Plaintiff claims that his Fourth Amendment rights were violated on September 15, 2010, when he “was arrested without probable cause by the Olympia Police Department while resting in a stationary vehicle with no keys in the ignition.” Second Am. Compl. 8, ECF 22. He contends that he was wrongfully charged with DUI “despite the fact that the vehicle was stationary for the prior 8 hours and [he] had no keys in the ignition,” and he “had no intention to drive.” Id. Plaintiff further complaints that, after he was “released to his own recognizance at approximately 12:01 am, September 16th, 2010,” he was illegally “arrested again within 20 minutes as he attempted to resume his trip home.” Id.
Plaintiff has filed another case, which he refers to as a “companion case.” James E. Jacobson, Jr. v. United States of Americal, et al, No. 3:24-cv-01601-YY. In that case, plaintiff filed a copy of an Olympia Police Department report from September 15, 2010, which states that officers responded to a Jack in the Box parking lot on a report that a very intoxicated male had been sitting in a car for approximately eight hours. Id., ECF 1 at 48. Officers found plaintiff seated behind the driver's seat of a car with its engine running and saw plaintiff with his hand on the gear shift. Id. There was a slight odor of intoxicants coming from inside the car and a paper sack in the size and shape of a bottle on the front passenger seat. Id. Plaintiff was thereafter arrested for DUI. Id.
Plaintiff also alleges that, “[a]t his arraignment, rather than recognizing that two arrests in the course of the same event is a violation of Plaintiff's Fourth Amendment rights, the Prosecuting Attorney for the City of Olympia, theatrically portrayed Plaintiff as a dangerous criminal engaged in a crime spree spanning multiple days and was a true danger to the Community,” and that “[n]umerous other attorneys from the Olympia Prosecuting Attorney's Office have perpetuated this false narrative to this day.” Id.
In his original complaint, plaintiff included as defendants the City of Olympia, the Thurston County Sheriff, and three police officers. Compl., ECF 1. Plaintiff has dropped those defendants in his Second Amended Complaint, and fails to allege how the current defendants, who are attorneys and probation officers, are liable for his purportedly unlawful arrests. “A plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights. Liability under § 1983 must be based on the personal involvement of the defendant.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).
In any event, claims pertaining to plaintiff's arrests in 2010 would be barred by the two-year statute of limitations for § 1983 actions. See Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999), as amended on denial of reh'g and reh'g en banc (Dec. 13, 1999) (holding “federal courts apply the forum state's personal injury statute of limitations for section 1983”). Additionally, prosecutorial immunity bars claims for “activities” that are “intimately associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976). Thus, where the City of Olympia prosecutor was “initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under § 1983.” Id.
2. Eighth and Fourteenth Amendments
Plaintiff also alleges defendants violated his rights under the Eighth and Fourteenth Amendments “through conditions constituting cruel and unusual punishment.” Second Am. Compl. 12, ECF 22. Plaintiff claims that he was jailed without his prescription medications for nearly two months and that he suffered inadequate medical care while in custody, including a skull fracture. Id. at 9. He also claims that he was placed in solitary confinement for nearly a month. Id.
Plaintiff has failed to allege how defendants, who are attorneys and probation officers, were responsible for his conditions of confinement. See Barren, 152 F.3d at 1194. These claims would also be barred by the two-year statute of limitations. Plaintiff has not provided the dates of his incarceration. Nevertheless, the Olympia Municipal Court revoked plaintiff's deferred prosecution on October 3, 2018, and his incarceration ended well more than two years before plaintiff initiated this action on September 19, 2024.
Plaintiff contends that defendants “continue to violate [his] rights under the Eighth Amendment and Fourteenth Amendments by imposing an effective sentence of home confinement for life.” Second Am. Compl. 14, ECF 22. Plaintiff's actual sentence, however, has long since been imposed, and there is no remedy for a claim involving an “effective sentence” as plaintiff asserts.
3. Fifth and Sixth Amendments
Plaintiff's claims under the Fifth and Sixth Amendments stem from his revocation hearing on October 3, 2018. Plaintiff alleges “the Court refused to consider ANY of the evidence [he] offered as proof that he was fully compliant with the Order for Deferred Prosecution, and instead pronounced Plaintiff in violation of said Order for Deferred Prosecution based almost exclusively on the objectively false reports produced by Mr. Barnes, in violation of Plaintiff's rights under the Fifth and Sixth Amendments to the U.S. Constitution.” Second Am. Compl. 10, ECF 22.
Plaintiff has attached copies of Barnes's reports to his Second Amended Complaint. In his November 3, 2010 report, Barnes wrote that, on October 21, 2010, the day after the deferred prosecution conditions were imposed on plaintiff, he appeared for intake while under the influence of alcohol and tested positive for alcohol and marijuana. Second Am. Compl., Ex. 13, ECF 22 at 24. Barnes prepared another report on December 29, 2010, which states that plaintiff failed to enter and provide proof of inpatient treatment. Id., Ex. 14, ECF 22 at 27. Barnes recommended that plaintiff's deferred prosecution should be revoked. Id. Thereafter, Barnes prepared a report on August 22, 2018, in which he noted that plaintiff was released from custody on November 11, 2010, to enter in-patient treatment but he never reported for treatment, and he was “on warrant status for approximately 8 yrs.” Id., Ex. 15, ECF 22 at 28. The report further states that plaintiff had been arrested in Oregon in 2011 and 2013, resulting in three new convictions, including two new convictions for DUI, and a prosecution for possession of cocaine. Id. Barnes again recommended that plaintiff's deferred prosecution should be revoked. The Olympia Municipal Court judge revoked plaintiff's deferred prosecution and convicted him of the two DUI offenses from 2010, and the Thurston County Superior Court affirmed his convictions on appeal. Id., Ex. 3, ECF 22 at 30.
One of these Oregon DUI convictions was later reversed on appeal in 2019. State v. Jacobson, 296 Or.App. 87, 95 (2019). However, this still leaves plaintiff with three DUI convictions, which results in a permanent revocation of driving privileges under Oregon law. O.R.S. 809.235(1)(b).
Plaintiff alleges that Barnes's August 22, 2018 report was “objectively false” because he wrote that plaintiff had failed to complete treatment. Id. at 6. In support, plaintiff has attached a letter that Multnomah County Circuit Court Judge Angel Lopez wrote to the Olympia Municipal Court judge on August 27, 2018, explaining that plaintiff had graduated from Drug Court after “successfully completed drug treatment and aftercare,” and that plaintiff received “his DUII Treatment Certificate of Completion in July of 2013.” Id., Ex. 4, ECF 22 at 32. In his letter, Judge Lopez wrote, “My analysis of the issues regarding his Washington State problem is that even though he completed the requisite classes and treatment regimes, this information was never properly communicated to your jurisdiction from either Washington or Multnomah County Circuit Courts.” Id.
There are at least two significant problems with plaintiff's claim. First, probation officers are entitled to judicial immunity. “Probation officers preparing reports for the use of state courts possess an absolute judicial immunity from damage suits under § 1983 arising from acts performed within the scope of their official duties.” Demoran v. Witt, 781 F.2d 155, 157 (9th Cir. 1986).
Second, nothing about Judge Lopez's letter, or plaintiff's certificate for completing DUI treatment in 2013, shows that the information in Barnes's August 22, 2018 report was “objectively false.” Barnes's report states that plaintiff “never reported to inpatient” treatment after being released from custody on November 11, 2010, “to enter inpatient” treatment. Second Am. Compl., Ex. 15, ECF 22 at 28 (emphasis added). Although plaintiff later completed treatment in Oregon in 2013, that is separate from the requirement by the Olympia Municipal Court in 2010 that plaintiff was to report to in-patient treatment following his release from custody for that purpose. It is also a stretch to conclude that this portion of Barnes's report was “almost exclusively” the reason that the judge revoked plaintiff's deferred prosecution, where the report otherwise states that plaintiff had been on warrant status for eight years and obtained two new convictions for DUII, the very same offense for which he was given the opportunity for a deferred prosecution. Id. at 9; id., Ex. 15, ECF 22 at 28.
In fact, the DUII Treatment Completion Certificate that plaintiff has submitted was likely part of a court-ordered obligation related to one of his new Oregon DUI convictions. See Ex. 4, ECF 22 at 34 (referring to “the court evaluator”).
Finally, plaintiff's claims would be barred by Heck v. Humphrey, 512 U.S. 477 (1994). See Hebrard v. Nofziger, 90 F.4th 1000, 1007 (9th Cir. 2024) (finding the district court did not err by sua sponte raising Heck bar where it was apparent on the face of the complaint). Pursuant to Heck, “where success in a . . . § 1983 damages action would implicitly question the validity of conviction or duration of sentence, the litigant must first achieve favorable termination of his available state, or federal habeas, opportunities to challenge the underlying conviction or sentence.” Muhammad v. Close, 540 U.S. 749, 751 (2004); Nettles v. Grounds, 830 F.3d 922, 928 (9th Cir. 2016); see also Heck, 512 U.S. at 489-90 (“[A] § 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated.”) (emphasis added). “At its core, the favorable termination rule, as first articulated in Heck v. Humphr[ey] and extended by Edwards v. Balisok, precludes . . . damages for an alleged constitutional violation which, if established, would necessarily imply the invalidity of his conviction, sentence, or deprivation of good-time credits.” Stevenson v.Holland, No. 1:16-cv-01831-AWI-SKO, 2018 WL 1109707, at *4 (E.D. Cal. Mar. 1, 2018); Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (“[A] state prisoner's § 1983 action is barred (absent prior invalidation)-no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings)-if success in that action would necessarily demonstrate the invalidity of confinement or its duration.”). “[A] Heck dismissal is made without prejudice[.]” Washington v.Los Angeles Cnty. Sheriff's Dep't, 833 F.3d 1048, 1055 (9th Cir. 2016).
At the status conference, this court gave plaintiff notice that his claims may be barred by the Supreme Court's decision in Heck. In his Second Amended Complaint, plaintiff maintains that his case “does not challenge the validity of [his] underlying state court convictions or sentence” or “implicate the validity of his convictions.” Second Am. Compl. 4, ECF 22. Plaintiff fails to grasp the impact of the Heck decision on his case.
Plaintiff claims that he was arrested without probable cause, that his deferred prosecution was revoked and he was convicted of DUI because of false information that Barnes included in his reports, that other defendants have promoted and perpetuated this false information, and that the prosecuting attorneys “engaged in prosecutorial misconduct including multiple ‘Brady Violations.'” Id. at 6. As part of his prayer for relief, plaintiff seeks a “declaratory judgment invalidating false information impacting Plaintiff's driver's license.” Id. at 16. It is impossible to grant plaintiff the relief he seeks without implying the invalidity of his DUI convictions. Indeed, courts have held that Heck bars claims similar to those that plaintiff alleges in this case. See Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996) (“There is no question that Heck bars Smithart's claims that defendants lacked probable cause to arrest him and brought unfounded criminal charges against him.”); Allen v. Hubbard, No. CV 11-4056-SJO PJW, 2011 WL 6202910, at *1 (C.D. Cal. Oct.12, 2011), report and recommendation adopted, No. CV 11-4056-SJO PJW, 2011 WL 6178187 (C.D. Cal. Dec. 8, 2011) (finding the plaintiff's claims that the police and probation reports were falsified were Heck-barred); Pina v. Carr, No. C082684SIPR, 2008 WL 4447695, at *5 (N.D. Cal. Sept. 29, 2008) (finding Heck applied where “[d]etermining that there was a Brady violation at his trial would necessarily demonstrate the invalidity of the conviction and confinement”).
Plaintiff contends that, because he “lacks access to habeas relief, Heck's bar is inapplicable[.]” Second Am. Compl. 4, ECF 22. Plaintiff misunderstands the nuances of the Heck bar. In Lyall v. City of Los Angeles, the Ninth Circuit recognized that the plaintiff was unable to obtain federal habeas relief because he was in custody for only two days. 807 F.3d 1178, 1192 n.12 (9th Cir. 2015). However, the court observed that the plaintiff failed to exercise his right under state law to directly appeal his conviction or seek post-conviction relief. Id. Because his conviction had not been invalidated, his § 1983 claim for a Fourth Amendment violation, based on the officer's warrantless entry, was barred under Heck.
Here, plaintiff appealed his municipal court convictions to the Thurston County Superior Court, where they were affirmed. Id., Ex. 3, ECF 22 at 30. It is unclear whether plaintiff further appealed to the Washington Court of Appeals or if he challenged his convictions in a state postconviction proceeding, and the time for doing so has likely long since expired. Nevertheless, even if such relief is now “impossible as a matter of law,” plaintiff cannot use his failure to timely pursue his remedies “as a shield against the implications of Heck.” Guerrero v. Gates, 442 F.3d 697, 703-05 (9th Cir. 2006) (holding that, even though the plaintiff was out of custody, Heck barred plaintiff's wrongful arrest, malicious prosecution, and conspiracy claims because they attacked his conviction and “his failure timely to achieve habeas relief [was] self-imposed”).
See WA. R. APP. P. 5.2 (notice of appeal must be filed within 30 days); R.C.W. 10.73.090 (petition for collateral attack of criminal judgment must be filed within one year).
B. ADA Claim
Plaintiff claims that he was “subjected to discriminatory treatment by Defendants, including placement in solitary confinement due to his disability and failure to provide necessary accommodations.” Plaintiff fails to allege how the named defendants, who are attorneys and probation officers, had anything to do with the decision to place him in solitary confinement and deprive him of accommodations. Moreover, this claim, which relates to plaintiff's incarceration that occurred many years ago, would be barred by the statute of limitations for ADA claims. See Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1137 n.2 (9th Cir. 2002) (“Because the ADA does not contain a statute of limitations, the court must apply the statute of limitations of the most analogous state law.”); Mora v. Green River Coll., 200 Wash.App. 1026 (2017) (applying the three-year statute of limitations for personal injury claims to ADA claims).
C. Remaining State Law Claims
Plaintiff also asserts state law claims for defamation, fraud, and intentional infliction of emotional distress. The remaining state law claims would similarly be time-barred. See Doscherv. State, 161 Wash.App. 1023 (2011) (observing a two-year statute of limitations applies to defamation claims and a three-year statute of limitations claim applies to fraud claims) (citing R.C.W. §§ 4.16.100, 4.16.080); St. Michelle v. Robinson, 52 Wash.App. 309, 314 (1988) (finding three-year limitations period applies to infliction of emotional distress).
Moreover, “[t]he decision whether to continue to exercise supplemental jurisdiction over state law claims after all federal claims have been dismissed lies within the district court's discretion.” Foster v. Wilson, 504 F.3d 1046, 1051 (9th Cir. 2007) (citing 28 U.S.C. § 1367(c)(3)). “[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine . . . will point toward declining to exercise jurisdiction over the remaining state-law claims.” Sanford v.MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010). Thus, it is not in the interest of justice to transfer the remaining state law claims to the Western District of Washington.
IV. Dismissal Without Prejudice
When a court dismisses a case for lack of personal jurisdiction, it should be without prejudice. See Grigsby v. CMI Corp., 765 F.2d 1369, 1372 n.5 (9th Cir. 1985). While this court has identified many flaws with plaintiff's claims, the above analysis regarding the sufficiency of the allegations, statute of limitations, and Heck was conducted solely for the purpose of determining whether the case should be transferred to the Western District of Washington. “A federal court may rule on the merits of a case only if it has personal jurisdiction over the parties.” Attachmate Corp. v. Pub. Health Tr. of Miami-Dade Cnty. Fla., 686 F.Supp.2d 1140, 1145 (W.D. Wash. 2010) (quoting Potter v. Hughes, 546 F.3d 1051, 1060 (9th Cir. 2008)). Also, plaintiff is a pro se litigant, and while his claims seem to suffer from insurmountable defects, he should be given an opportunity to refile his case in the correct court, which can examine the viability of his claims and decide whether to dismiss the case with prejudice. See Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (“Unless it is absolutely clear that no amendment can cure the defect, . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.”). Therefore, dismissal without prejudice is appropriate.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Tuesday, November 26, 2024. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.